1108.1Except as otherwise provided in this section, primary contact recreation shall be prohibited in the Potomac and Anacostia Rivers and Rock Creek until such time as the standards in § 1104.8 for Class A beneficial use are consistently maintained.
1108.2 The Director may authorize a special swimming event in the Potomac or Anacostia River if:
(a) A study conducted by the special swimming event organizer in accordance with § 1108.3 shows:(1) E. coli does not exceed a single sample value of 410 MPN/100 mL;(2) Turbidity does not exceed 20 NTU above ambient turbidity as determined by DOEE; and(3) pH is greater than 6.0 and less than 8.5; and(b) All other provisions of this section have been satisfied.1108.3The study required by § 1108.2 shall be conducted as follows:
(a) At least twenty-eight (28) days before collecting samples, the special swimming event organizer shall submit to the District Department of the Environment (the Department) for review and approval a quality assurance project plan (QAPP) that shall be prepared and implemented by a qualified professional environmental monitoring firm in accordance with: (1) "EPA Requirements for Quality Management Plans (QA/R-2)," (EPA/240/B-01/002, March 2001 or subsequently issued guidance); or(2) Equivalent documentation as determined by the United States Environmental Protection Agency (US EPA);(b) Samples shall not be collected before the QAPP is approved;(c) All samples shall be collected as required in the approved QAPP;(d) Samples for Escherichia coli (E. coli), pH, and turbidity shall be collected and analyzed according to US EPA regulation 40 CFR Part 136 ;(e) The qualifications of each person undertaking the sample collection and analysis for the special swimming event organizer shall be subject to the Department's review, for verification that the person meets minimum technical background and experience requirements; and(f) The laboratory conducting the sample analysis shall: (1) Be capable of providing complete environmental analytical services, consistent with US EPA protocols, and according to a Laboratory Quality Management Plan; and(2) Be accredited or certified to perform the analysis, including the specific methods identified in the QAPP.1108.4The study and report of the sample analysis shall be submitted to the Department at least forty-eight (48) hours before a scheduled special swimming event.
1108.5Failure to submit the study and report by the deadline will result in the Director's denial of authorization for the special swimming event.
1108.6 The study and report shall include:
(a) Each completed chain of custody form and lab report;(b) An assessment of whether the water quality criteria specified in § 1108.2 have been attained; and(c) An evaluation of each relevant factor, including:(2) Upstream sewage or chemical releases; and(3) Other environmental conditions that may affect the water quality.1108.7 The Director shall not authorize a swim event in the Potomac or Anacostia River if the results of the study or the Director's independent investigation indicate:
(a) The water quality criteria specified in § 1108.2 are not attained;(b) An emergency health or physical hazard caused by a hazardous pollutant or condition has occurred;(c) There may be a health risk from a known pollution source, including:(1) Combined sewer overflow;(2) Failing sewer infrastructure;(4) Wastewater treatment discharge; or(d) Any other circumstance that the Director finds may endanger the health or safety of event participants.1108.8At least twenty-eight (28) days before a special swimming event, the special swimming event organizer shall submit to the Director verification that a Certificate of Insurance, or other proof of coverage, that has been signed by an authorized representative of the insurer, has been provided to each appropriate permitting agency.
1108.9The Director shall not authorize the special swimming event unless the verification is submitted to the Director in the time required by § 1108.8.
1108.10The special swimming event organizer's verification shall state in writing that:
(a) The special swimming event organizer has obtained the following coverage for the event period, and the amount of coverage, if any, for each of the following: (1) Comprehensive coverage;(2) Bodily injury liability coverage;(3) If the owner of a vehicle, including a boat, liability coverage for use of the vehicle;(4) Workers' compensation insurance; and(5) Coverage of the District as an additional insured;(b) Each insurance policy is written with a responsible company licensed by the District; and(c) Each insurance policy provides for at least twenty-eight (28) days' written notice to the District prior to termination or material alteration.1108.11If an approval required by this section is denied, canceled, not renewed, or materially altered, a special swimming event organizer shall:
(a) Notify the Director immediately by phone and email; and(b) Confirm to the Director by letter and fax within twenty-four (24) hours.1108.12Upon receiving notice of a material change in a required approval, the Director may rescind authorization for the special swimming event.
1108.13As a condition of event authorization, the special swimming event organizer shall secure from each employee, contractor, and volunteer of the special swimming event organization and from each participant a signed, Department-approved statement that expressly:
(a) Assumes the risk of event participation; and(b) Waives liability of the District Government, its officers, employees, and agents for any damage or injury arising out of the person's participation in the event.1108.14The special swimming event organizer shall take each step which:
(a) The Director deems necessary to ensure that the requirements of this section are satisfied; and(b) Shall include presenting each required report or form to the Director within twenty-eight (28) days after the event.1108.15The special swimming event organizer shall pay a fee of one thousand dollars ($1,000) per event for the costs the Department incurs, including review and approval or denial of the QAPP and other submittals.
1108.16Payment of the fee shall:
(a) Occur by the time the application is submitted; and(b) Be a precondition for review of the QAPP, related studies, and other submittals.1108.17The special swimming event organizer shall provide to the Director at least seven (7) days in advance of the special swimming event documentation showing:
(a) Coordination with each relevant public safety agency; and(b) A contingency plan for the special swimming event in the circumstance that either the Director or the special swimming event organizer determines that swimming would not be safe.1108.18The special swimming event organizer shall provide to the Director within fifty-six (56) days (eight weeks) after the special swimming event a report of:
(a) Each recorded incident from each relevant public safety agency;(b) Each medical issue or incident involving an on-site first aid facility;(c) Use of the contingency plan for unsafe swimming; and(d) Sampling of each event day's water at the event site, and the subsequent testing of each sample.1108.19With respect to this section, a person adversely affected or aggrieved by an action of the Department shall exhaust administrative remedies by timely filing an administrative appeal with, and requesting a hearing before, the Office of Administrative Hearings (OAH), in accordance with the Office of Administrative Hearings Establishment Act of 2001, effective March 6, 2002 (D.C. Law 14-76; D.C. Official Code, §§ 2-1831.01et seq. (2007 Repl. & 2011 Supp.)), as amended, and OAH's rules.
1108.20The following general rules apply to this section:
(a) A person who is regulated pursuant to this section may empower an agent to act for that person; however, empowering an agent does not change or eliminate that person's duty, responsibility, or liability; and(b) The special swimming event organizer shall, if not a natural person, be represented by an officer, chief executive, or other responsible natural person, who shall: (1) Sign and certify each application and report; and(2) Take responsibility for the duties and conduct of the special swimming event organizer.D.C. Mun. Regs. r. 21-1108
Notice of Final Rulemaking published at 59 DCR 9470, 9471 (August 10, 2012); amended by Final Rulemaking published at 65 DCR 8041 (8/3/2018); amended by Final Rulemaking published at 69 DCR 5232 (5/13/2022)Authority: District Department of the Environment Establishment Act of 2005, §§ 101 et seq., effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code §§ 8-151.01 et seq. (2008 Repl. & 2012 Supp.)), as amended; Water Pollution Control Act of 1984, effective March 16, 1985 (D.C. Law 5-188; D.C. Official Code §§ 8-103.01 et seq. (2008 Repl. & 2012 Supp.)), as amended; and Mayor's Order 2006-61, dated June 14, 2006, and its delegations of authority.